As with the Coalition, the Labor party’s proposals are largely influenced by recent high-profile cases of worker exploitation by large companies including 7-Eleven, Pizza Hut and Baiada. Its policies focus on strengthening workers’ rights with the following proposals:
- Higher penalties for underpayments – the upper limit for penalties for underpaying employees may be increased to three times the total value of the underpayment. Given that there have been several multi-million dollar underpayment claims in the last few years, the potential penalties pose a significant deterrent.
- New offences for underpayments – a new criminal offence may apply to employers who intentionally or recklessly seriously underpay their employees. Labour proposes that the offence will carry a maximum penalty of $43,200 and up to 2 years’ imprisonment for an individual, or $216,000 for a body corporate. Directors of employers found guilty of this offence may also face disqualification.
- Sham contracting offences – currently, employers can defend allegations of sham contracting on the basis that they did not know a contracting arrangement was a sham, and were not reckless as to whether there was an employment relationship. The Labor party intends to remove this defence by changing the sham contracting test to: if a “reasonable person” would think someone is an employee, then the person must be treated as an employee. The unfair dismissal and general protections laws will also be expanded to protect employees who question whether they are an independent contractor or an employee. A new statutory definition of “independent contracting” will also be introduced. Greater penalties for sham contracting will also be introduced.
- Targeting ‘Phoenix’ employers – where an indebted company deliberately transfers its assets to a new company to avoid paying creditors, tax or employee entitlements, directors will be held personally liable for unpaid employment entitlements owed to workers, as well as civil penalties for breach of the Fair Work Act 2009 (Cth).
- Temporary overseas workers – it will be a criminal offence for employers to deliberately exploit temporary overseas workers and to breach their obligations under the Fair Work Act 2009 (Cth). Penalties of up to 2 years’ imprisonment or a fine of up to $43,000 for an individual and up to $216,000 for a corporation will apply. Temporary overseas workers working without a valid visa will no longer be prevented from pursuing legal action to receive compensation if they are underpaid. Employers will also be required to provide Temporary Overseas Worker Support Packs produced by the Fair Work Ombudsman. Failure to do so will result in a civil penalty of up to $10,800 for an individual and up to $54,000 for a corporation.
- Weekend Penalty Rates – Labor will make submissions to the Fair Work Commission and will intervene in Commission proceedings in support of weekend penalty rates.
- Commonwealth Cleaning Services Guidelines – the abolished Commonwealth Cleaning Services Guidelines will be reinstated. The Guidelines required companies tendering for Commonwealth cleaning contracts to pay cleaners above the award wage.
- Licensing Labour Hire – labour hire companies, including those based overseas that supply labour to Australian companies, will need a licence to operate. It will be unlawful for employers to “knowingly or recklessly” use an unlicensed labour hire company. The agriculture, horticulture, food processing and cleaning industries will be the main focus of the new licencing scheme. Licences will only be granted to employers that meet a “fit and proper” person test. Labour hire companies will have to comply with workplace, occupational health and safety and immigration laws and must pay superannuation and tax correctly. A new Labour Hire Licencing and Compliance Inspectorate within the Fair Work Ombudsman will conduct licence compliance audits. Penalties for breach of the licencing laws will be up to $216,000 for an individual and $1.1 million for a body corporate. The licensing scheme would take effect from 1 July 2017.
The Labor party is also proposing the following election policies:
- Family Violence leave – domestic and family violence leave will be added to the National Employment Standards. Full-time and part-time employees will receive five days of paid domestic and family violence leave. Casual workers will be entitled to five days of unpaid family violence leave. The aim of this leave is to provide workers experiencing domestic and family violence time to seek legal and financial advice, attend court, counselling and medical appointments and to make relocation arrangements. A review of the effectiveness of this leave will be conducted two years after its introduction.
- Youth unemployment – the “Working Futures” program will be introduced to tackle Australia’s high youth unemployment rate. The Working Futures program will see jobseekers undertake a six-week job readiness course, a six month work placement with an employer paid at an award-equivalent training wage and a fully funded Certificate III in a subject of their choice.
- Unions – a range of measures related to union governance will be introduced. This includes giving ASIC powers to investigate serious breaches of the Fair Work (Registered Organisations) Act 2009 (Cth), providing the General Manager of the Fair Work Commission $4.5 million over four years to monitor registered organisations, and greater penalties for union officials who engage in misleading and deceptive conduct or fail to comply with disclosure laws. Courts will be empowered to disqualify union officials for such breaches. Registered organisations will also be required to change their auditors every five years. Auditors will face criminal penalties if they audit a registered organisation without having certain qualifications, and may face up to 12 months jail if they knowingly or recklessly fail to report unlawful conduct to the Fair Work Commission or police.
- Whistleblower Protection – Current whistleblower protection laws will be extended to the private and not-for-profit sector. The maximum penalty for taking adverse action against whistleblowers will be increased to 2 years jail and an $18,000 fine. Whistleblowers will also be able to seek compensation and reinstatement. Union members will be protected from adverse action if they make a disclosure about the union to a third party (including the media), provided that they first raised their concerns with Fair Work Regulators and their Union.
Russell Kennedy will publish further updates about these proposals depending on the outcome of the 2016 Federal election.